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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Victorian Water Substitution Target Bill 2007
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Definitions 2
4 Objects 4
5 Crown to be bound 4
PART 2--ADMINISTRATION 5
6 Role of ESC 5
7 ESC to have regard to the cost of complying with VWST scheme
target 6
PART 3--WATER SUBSTITUTION CERTIFICATES 7
Division 1--Accredited persons 7
8 Who may apply to be accredited? 7
9 ESC to approve or refuse application 7
10 Time limit for deciding applications 7
11 ESC to allocate registration numbers 8
12 Suspension of accreditation 8
Division 2--Prescribed activities 9
13 Prescribed activities 9
Division 3--Creation of certificates 9
14 Who may create a certificate? 9
15 When can a certificate be created? 11
16 How many certificates may be created in respect of a prescribed
activity 11
17 Declaration of discount factors 11
18 Offences relating to creation of certificates 12
561PM6B.I-16/4/2008 i BILL LC INTRODUCTION 16/4/2008
Clause Page
Division 4--Form, registration, expiry and transfer of certificates 14
19 Form and content of certificates 14
20 Certificates must be registered 15
21 Expiry of certificate 15
22 Certificates may be transferred 16
Division 5--Retirement of certificates 16
23 Owner may surrender certificate voluntarily 16
24 Retirement of certificates 16
PART 4--WATER SUBSTITUTION CERTIFICATE
SHORTFALL AND VWST SCHEME TARGET 18
25 Water substitution certificate shortfall 18
26 Civil penalty for shortfall 18
27 Calculation of water substitution certificate shortfall 18
28 VWST scheme target 19
29 Potable water use reduction liability for relevant entity 20
PART 5--STATEMENTS AND SURRENDER OF
CERTIFICATES 22
30 Water substitution statements 22
31 Restrictions on certificates that can be surrendered 23
32 Fees for surrender of certificates 23
PART 6--ENFORCEMENT 24
33 Shortfall statement 24
34 Application for declaration and order for payment of shortfall
penalty 24
35 ESC may require surrender of certificates if certificates
improperly created 25
PART 7--POWERS OF AUTHORISED OFFICERS 27
Division 1--Appointment of authorised officers 27
36 Appointment of authorised officers 27
37 Identity cards 27
Division 2--Powers of authorised officer 28
38 When may powers be exercised? 28
39 Entry to premises 28
40 Information to be provided to occupier on entry 29
41 Entry with consent 30
42 Entry with monitoring warrant 30
43 Monitoring powers of authorised officers 31
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Clause Page
44 Authorised officer may ask for information 33
45 Authorised officer may require information 34
46 Failure to produce documents or answer questions 34
47 Protection against self-incrimination 34
Division 3--Occupiers' rights and responsibilities 35
48 Occupier may be present during execution of warrant 35
49 Occupier to provide authorised officer with assistance 35
Division 4--Monitoring warrants 35
50 Monitoring warrants 35
PART 8--GENERAL 38
Division 1--Review of decisions 38
51 Review of decisions 38
Division 2--Registers 39
52 Registers to be maintained 39
53 Register of accredited persons 39
54 Register of water substitution certificates 40
Division 3--Information provisions 40
55 ESC may obtain information and documents 40
56 Failure to comply with notice 41
57 Protection against self-incrimination 41
58 Copies of documents 41
59 ESC may retain documents 42
60 Disclosure of information an offence 42
61 Information may be disclosed 43
62 ESC must publish certain information 43
Division 4--General offences 44
63 False or misleading information 44
64 Failure to provide documents 44
65 Offences by bodies corporate 45
Division 5--Evidence and records 45
66 Evidence 45
67 Records to be kept by accredited persons and relevant entities 46
Division 6--Fees 47
68 Fees 47
Division 7--ESC guidelines 49
69 ESC guidelines 49
561PM6B.I-16/4/2008 iii BILL LC INTRODUCTION 16/4/2008
Clause Page
Division 8--Regulations 50
70 Regulations 50
Division 9--Review of Act 52
71 Review of operation of Act 52
PART 9--AMENDMENT OF ESSENTIAL SERVICES
COMMISSION ACT 2001 54
72 Functions 54
73 New section 10E inserted 54
10E Commission's functions in relation to water substitution 54
74 Repeal of this Part 54
ENDNOTES 55
561PM6B.I-16/4/2008 iv BILL LC INTRODUCTION 16/4/2008
PARLIAMENT OF VICTORIA
Introduced in the Council by Mr. Peter Hall
Victorian Water Substitution Target
Bill 2007
A Bill for an Act to promote a reduction in the use of potable water by
establishing the VWST scheme and to amend the Essential Services
Commission Act 2001 to confer functions on the Essential Services
Commission and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to promote a reduction
in the use of potable water by establishing the
5 VWST scheme which--
(a) provides for the creation and acquisition of
water substitution certificates; and
(b) requires the surrender of water substitution
certificates.
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Part 1--Preliminary
s. 2
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
5 operation before 1 January 2010, it comes into
operation on that day.
3 Definitions
In this Act--
accredited person means a person accredited
10 under Division 1 of Part 3;
business day means a day other than a Saturday or
Sunday or a public holiday appointed under
the Public Holidays Act 1993;
carried forward surplus has the meaning given by
15 section 27(2)(c);
certificate means a water substitution certificate
created under Division 3 of Part 3;
ESC means the Essential Services Commission
established under section 7 of the Essential
20 Services Commission Act 2001;
ESC guidelines means the guidelines made by the
ESC under section 69;
large water consumer means a consumer of more
than 10 megalitres of potable water
25 purchased from a water retailer in the year
before the relevant target date;
monitoring warrant means a warrant issued under
section 50;
occupier in relation to premises, includes a person
30 present at the premises who is in apparent
control of the premises;
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Victorian Water Substitution Target Bill 2007
Part 1--Preliminary
s. 3
premises includes the following--
(a) a structure, building or vehicle;
(b) a place (whether enclosed or built on or
not);
5 (c) a part of a thing referred to in
paragraph (a) or (b);
prescribed means prescribed by the regulations;
prescribed activity means an activity which is
prescribed to be a prescribed activity in
10 accordance with section 13;
recycled water means water derived from sewage
or trade waste that has been treated for the
purposes of re-use;
register of accredited persons has the meaning
15 given by section 53;
register of water substitution certificates has the
meaning given by section 54;
registration number has the meaning given by
section 11;
20 relevant entity means a person who is a--
(a) large water consumer; or
(b) water retailer;
target date means 1 January 2010, 1 January 2015
and 1 January 2020;
25 VWST scheme means the scheme established by
this Act;
VWST scheme target means the VWST scheme
target under section 28;
warrant premises, in relation to a monitoring
30 warrant, means the premises to which the
warrant relates;
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Victorian Water Substitution Target Bill 2007
Part 1--Preliminary
s. 4
water retailer means--
(a) City West Water Ltd, A.C.N 066 902
467;
(b) South East Water Ltd, A.C.N 066 902
5 547;
(c) Yarra Valley Water Ltd, A.C.N 066
902 501;
water substitution certificate shortfall has the
meaning given by section 27(2)(a);
10 water substitution shortfall penalty has the
meaning given by section 26;
water substitution statement means a water
substitution statement under section 30;
year means calendar year.
15 4 Objects
The objects of this Act are to--
(a) reduce potable water use;
(b) encourage the substitution of potable water
with alternative water supplies including
20 recycled water, treated storm water and rain
water;
(c) encourage investment, employment and
technology development in industries that
supply goods and services which reduce the
25 use of potable water.
5 Crown to be bound
This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
__________________
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Victorian Water Substitution Target Bill 2007
Part 2--Administration
s. 6
PART 2--ADMINISTRATION
6 Role of ESC
(1) The ESC is responsible for the general
administration of this Act.
5 (2) Without limiting subsection (1), the functions of
the ESC under this Act include to--
(a) accredit persons who may create certificates;
(b) monitor and administer the creation,
registration, transfer and surrender of
10 certificates;
(c) enforce the imposition of water substitution
shortfall penalties;
(d) undertake audits of the creation of
certificates by accredited persons;
15 (e) monitor compliance with this Act.
(3) The ESC must provide a report on the
performance of the VWST scheme to the
Minister--
(a) after the end of each target date; and
20 (b) at the end of any other period as requested by
the Minister in writing.
(4) The ESC must include a report on the operation of
this Act in its annual report of operations under
Part 7 of the Financial Management Act 1994.
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Part 2--Administration
s. 7
7 ESC to have regard to the cost of complying with
VWST scheme target
The Water Industry Regulatory Order made under
Part 1A of the Water Industry Act 1994 has
5 effect as if it specified that in making a price
determination, the ESC must ensure that water
tariff structures appropriately reflect the different
ways that large water consumers and other water
consumers meet the cost of complying with the
10 VWST scheme target.
__________________
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Victorian Water Substitution Target Bill 2007
Part 3--Water Substitution Certificates
s. 8
PART 3--WATER SUBSTITUTION CERTIFICATES
Division 1--Accredited persons
8 Who may apply to be accredited?
(1) A person may apply to the ESC to be an
5 accredited person.
(2) An application must--
(a) be made in a form and manner required by
the ESC; and
(b) contain any information required by the ESC
10 which the ESC considers necessary for the
purposes of the VWST scheme; and
(c) be accompanied by any documents required
by the ESC which the ESC considers
necessary for the purposes of deciding
15 whether to approve the application; and
(d) be accompanied by any relevant fee fixed
under section 68.
9 ESC to approve or refuse application
(1) If the ESC receives an application that complies
20 with section 8, the ESC must approve the
application.
(2) If the ESC is not satisfied that an application
complies with section 8, the ESC must refuse the
application.
25 10 Time limit for deciding applications
(1) The ESC must decide an application made under
section 8 within--
(a) the period of 20 business days beginning on
the day the ESC received the application; or
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Part 3--Water Substitution Certificates
s. 11
(b) if before the end of that period the ESC and
the applicant agree to a longer period, that
longer period.
(2) If during the period applicable under subsection
5 (1), the ESC requests information from an
applicant for the purpose of deciding the
application, the period between the request and
the giving of the information must be disregarded
for the purpose of calculating the period
10 applicable under subsection (1).
11 ESC to allocate registration numbers
If the ESC approves an application under
section 9, the ESC must--
(a) allocate the applicant a unique registration
15 number; and
(b) advise the applicant of the number.
12 Suspension of accreditation
(1) If an accredited person has been convicted of an
offence under section 18, the ESC may, by written
20 notice, suspend the person's accreditation for the
period (not exceeding 2 years) as the ESC
considers appropriate in all of the circumstances
and specifies in the notice.
(2) If a person whose accreditation has previously
25 been suspended under subsection (1) is convicted
of another offence under section 18, the ESC may,
by written notice, suspend the person's
accreditation for the period (including
permanently) that the ESC considers appropriate
30 in all of the circumstances and specifies in the
notice.
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Part 3--Water Substitution Certificates
s. 13
(3) The ESC may, by written notice, suspend the
accreditation of an accredited person if the ESC
believes on reasonable grounds that the person has
committed an offence against this Act.
5 (4) An accreditation that is suspended under
subsection (3) is suspended for the period (not
exceeding 12 months) that the ESC considers
appropriate in all of the circumstances and
specifies in the notice.
10 (5) The ESC may, by written notice, suspend the
accreditation of an accredited person if the
accreditation was obtained improperly.
(6) An accreditation that is suspended under
subsection (5) is suspended for the period
15 (including permanently) that the ESC considers
appropriate in all of the circumstances and
specifies in the notice.
Division 2--Prescribed activities
13 Prescribed activities
20 (1) Regulations made under section 70 may prescribe
an activity to be a prescribed activity.
(2) An activity may be prescribed to be a prescribed
activity if the activity will result in a reduction in
the use of potable water that would not otherwise
25 have occurred if the activity was not undertaken.
Division 3--Creation of certificates
14 Who may create a certificate?
(1) Subject to sections 15 and 16--
(a) the consumer of potable water in respect of
30 whom the prescribed activity is undertaken;
or
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Part 3--Water Substitution Certificates
s. 14
(b) a person who is the holder of an assignment
of the right to create a certificate made by the
consumer referred to in paragraph (a)--
may, if that consumer or that person is an
5 accredited person, create a certificate or
certificates in relation to the prescribed activity.
(2) If the owner of a premises is not the consumer of
potable water in respect of whom the prescribed
activity is undertaken because--
10 (a) the owner of the premises is the landlord of
premises in which the tenant is the consumer
of the potable water; or
(b) the owner of the premises is undertaking the
construction of the premises or the
15 renovation of the premises which are not
currently connected for potable water--
the owner of the premises is to be taken to be the
consumer of potable water in respect of whom the
prescribed activity is undertaken for the purposes
20 of subsection (1)(a).
(3) An assignment for the purposes of subsection
(1)(b) must be made--
(a) by a written notice; and
(b) in the manner and form specified in the ESC
25 guidelines.
(4) If a consumer makes an assignment in accordance
with subsection (3), the consumer ceases to be
entitled to create the certificate or certificates in
respect of the prescribed activity to which the
30 assignment relates.
(5) In this section, owner has the same meaning as in
the Subdivision Act 1988.
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Part 3--Water Substitution Certificates
s. 15
15 When can a certificate be created?
(1) A certificate can only be created if the prescribed
activity has been undertaken on or after the
commencement of the VWST scheme and before
5 1 January 2020.
(2) For the purposes of subsection (1), the regulations
may specify when a prescribed activity is to be
taken to have been undertaken.
(3) A certificate must be created not later than
10 6 months after the end of the year in which the
prescribed activity has been undertaken.
(4) Regulations made under section 70 may prescribe
conditions or circumstances under which a
certificate cannot be created.
15 16 How many certificates may be created in respect of
a prescribed activity
(1) An accredited person may create a certificate for
each kilolitre per annum of potable water use to be
reduced by the prescribed activity.
20 (2) Regulations made under section 70 may provide
for the method and variables to be used to
calculate the potable water use to be reduced by
the prescribed activity for the purposes of this
section.
25 17 Declaration of discount factors
(1) This section applies if the Minister proposes to
make a declaration specifying the discount factors
which are to be used to calculate the potable water
use to be reduced by a prescribed activity or a
30 class of prescribed activities for the purposes of
section 16(1).
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Part 3--Water Substitution Certificates
s. 18
(2) Without limiting the generality of subsection (1),
the discount factors are to take into account any
uncertainty associated with the reduction of
potable water use that would eventuate from a
5 specified prescribed activity or specified class of
prescribed activities but for the existence of the
VWST scheme.
(3) The Minister must publish in the Government
Gazette a notice of intention to declare a discount
10 factor specifying--
(a) the proposed discount factor;
(b) the prescribed activity or class of prescribed
activities in respect of which the discount
factor is proposed;
15 (c) the reasons for the proposed discount factor;
(d) the procedures for the making and
consideration of submissions.
(4) If after complying with subsection (3), the
Minister determines to make the declaration, the
20 Minister may make the declaration by notice
published in the Government Gazette.
(5) A notice under subsection (4) must--
(a) contain a copy of the declaration; and
(b) specify the date from which the declaration
25 is to take effect.
18 Offences relating to creation of certificates
(1) A person who is not entitled under this Act to
create a certificate must not create a certificate
under this Act.
30 Penalty: 60 penalty units in the case of an
individual;
240 penalty units in the case of a body
corporate.
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Part 3--Water Substitution Certificates
s. 18
(2) In determining whether a person was or was not
entitled to create a certificate under this Act, the
fact that the certificate has been registered by the
ESC under section 20 is to be disregarded.
5 Note
This ensures that a person cannot raise as relevant evidence
the fact that a certificate has been registered.
(3) An accredited person must not create a certificate
in respect of a prescribed activity which occurred
10 before the person applied for accreditation under
section 8.
Penalty: 60 penalty units in the case of an
individual;
240 penalty units in the case of a body
15 corporate.
(4) An accredited person must not create a certificate
during any period in which accreditation under
section 8 is suspended in accordance with
section 12.
20 Penalty: 60 penalty units in the case of an
individual;
240 penalty units in the case of a body
corporate.
(5) An accredited person must not create a certificate
25 in respect of a prescribed activity, if the accredited
person--
(a) has previously created a valid certificate
under this Act in respect of that prescribed
activity; or
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Part 3--Water Substitution Certificates
s. 19
(b) has knowledge that another person has
previously created a valid certificate under
this Act in respect of that prescribed activity.
Penalty: 60 penalty units in the case of an
5 individual;
240 penalty units in the case of a body
corporate.
Division 4--Form, registration, expiry and transfer of
certificates
10 19 Form and content of certificates
(1) A certificate must be created in an electronic form
specified in the ESC guidelines.
(2) A certificate must contain--
(a) a unique identification code;
15 (b) the name of the consumer of potable water;
(c) the date on which the prescribed activity
occurred;
(d) details of the prescribed activity;
(e) the date on which the certificate was created.
20 (3) A certificate's unique identification code consists
of the following in the following order--
(a) the accredited person's registration number;
(b) the year;
(c) a number in an unbroken sequence, that is
25 used for all certificates issued by the
accredited person in that year, that starts at
one and has increments of one.
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Part 3--Water Substitution Certificates
s. 20
20 Certificates must be registered
(1) A certificate is not valid until it has been
registered by the ESC.
(2) If the ESC is notified that a certificate has been
5 created, the ESC must decide whether the
certificate is eligible for registration.
(3) A certificate is not eligible for registration unless
the ESC has been paid any relevant fee fixed
under section 68 for the registration of the
10 certificate.
(4) If the ESC decides that a certificate is eligible for
registration, the ESC must create an entry for the
certificate in the register of water substitution
certificates and record the person who created the
15 certificate as the owner of the certificate.
(5) If the ESC decides that a certificate is not eligible
for registration, or has been improperly created,
the ESC must--
(a) not register the certificate; and
20 (b) notify the person who created the certificate.
21 Expiry of certificate
(1) A certificate expires--
(a) on the day which is the sixth anniversary of
the day on which the prescribed activity was
25 undertaken; or
(b) if it is surrendered to the ESC before the
certificate expires under paragraph (a), on
the day on which it is surrendered.
(2) If a certificate expires, the ESC must alter the
30 entry relating to the certificate in the register of
certificates to show that the certificate has expired
and is no longer valid.
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Part 3--Water Substitution Certificates
s. 22
22 Certificates may be transferred
(1) A certificate registered under section 20 may be
transferred to any person.
(2) The ESC must be notified of the transfer of a
5 certificate.
(3) The notification must be by electronic
transmission in the manner specified in the ESC
guidelines.
(4) The notification must be accompanied by any
10 relevant fee fixed under section 68.
(5) If the ESC is notified in accordance with this
section, the ESC must alter the register of
certificates to show the transferee as the owner of
the certificate.
15 Division 5--Retirement of certificates
23 Owner may surrender certificate voluntarily
(1) The owner of a certificate may voluntarily
surrender the certificate under this section.
Note
20 Certificates may also be surrendered under section 30 or 35.
(2) The owner of a certificate, must at the same time,
give the ESC, reasons in writing, why the
certificate is being surrendered.
(3) A certificate surrendered under this section must
25 not be included in a water acquisition statement.
24 Retirement of certificates
(1) If a certificate is surrendered under section 23
or 30 or in accordance with section 35, the
certificate ceases to be valid.
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Part 3--Water Substitution Certificates
s. 24
(2) If a certificate ceases to be valid, the ESC must
alter the entry relating to the certificate in the
register of water substitution certificates to show
that the certificate is no longer valid.
__________________
561PM6B.I-16/4/2008 17 BILL LC INTRODUCTION 16/4/2008
Victorian Water Substitution Target Bill 2007
Part 4--Water Substitution Certificate Shortfall and VWST Scheme Target
s. 25
PART 4--WATER SUBSTITUTION CERTIFICATE
SHORTFALL AND VWST SCHEME TARGET
25 Water substitution certificate shortfall
(1) A relevant entity must not have a water
5 substitution certificate shortfall for a target date.
(2) Subsection (1) does not apply after 1 January
2020.
26 Civil penalty for shortfall
(1) A relevant entity which has a water substitution
10 certificate shortfall for a target date is liable to pay
to the Consolidated Fund, as a pecuniary penalty,
a water substitution shortfall penalty determined
in accordance with this section.
(2) The water substitution shortfall penalty payable
15 by a relevant entity for a target date is determined
by multiplying the relevant entity's water
substitution certificate shortfall (in kilolitres of
potable water) for that year by the prescribed
maximum price for a kilolitre of potable water.
20 (3) The Minister must ensure that an amount
equivalent to the total of pecuniary penalties paid
into the Consolidated Fund under subsection (1) is
appropriated from the Consolidated Fund for
projects which augment Melbourne's water
25 supply.
27 Calculation of water substitution certificate shortfall
(1) The water substitution certificate shortfall of a
relevant entity which is a water retailer for a target
date is to be calculated in accordance with the
30 formula--
A (B + C)
where--
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Part 4--Water Substitution Certificate Shortfall and VWST Scheme Target
s. 28
"A" is the number of kilolitres of potable water
use reduction that the relevant entity is liable
for under section 29 for that target date;
"B" is the number of kilolitres of potable water
5 attributable to certificates surrendered under
section 30 by the relevant entity in relation to
that target date;
"C" is the number of kilolitres of potable water
which are a carried forward surplus.
10 (2) If the result of the calculation under
subsection (1)--
(a) is greater than zero, the relevant entity has a
water substitution certificate shortfall for the
target date equal to the result;
15 (b) is zero or less than zero, the relevant entity
does not have a water substitution certificate
shortfall for the target date;
(c) is less than zero, the relevant entity has a
carried forward surplus for the target date.
20 28 VWST scheme target
The VWST scheme target is--
(a) 43 000 000 kilolitres of potable water by
1 January 2010;
(b) 86 000 000 kilolitres of potable water by
25 1 January 2015;
(c) 129 000 000 kilolitres of potable water by
1 January 2020.
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Part 4--Water Substitution Certificate Shortfall and VWST Scheme Target
s. 29
29 Potable water use reduction liability for relevant
entity
(1) For the purposes of section 27, the total amount in
kilolitres of potable water that a relevant entity
5 which is a water retailer is liable for in respect of a
target date is to be calculated in accordance with
the formula--
( A - B ) xE
C
where--
10 "A" is the number of kilolitres of potable water
sold by the water retailer in the year before
that target date;
"B" is the number of kilolitres of potable water
sold by the water retailer to all large water
15 consumers in the year before that target date;
"C" is the number of kilolitres of potable water
sold by all the water retailers in the year
before that target date;
"E" is 43 000 000 kilolitres.
20 (2) For the purposes of section 27, the total amount in
kilolitres of potable water that a relevant entity
which is a large water consumer is liable for in
respect of a target date is to be calculated in
accordance with the formula--
D
25 xE
C
where--
"D" is the number of kilolitres of potable water
purchased by the large water consumer from
all water retailers in the year before that
30 target date;
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Part 4--Water Substitution Certificate Shortfall and VWST Scheme Target
s. 29
"C" is the number of kilolitres of potable water
sold by all the water retailers in the year
before that target date;
"E" is 43 000 000 kilolitres.
5 (3) The amount calculated under subsection (1) or (2)
is to be rounded up to the nearest kilolitre.
__________________
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Victorian Water Substitution Target Bill 2007
Part 5--Statements and Surrender of Certificates
s. 30
PART 5--STATEMENTS AND SURRENDER OF
CERTIFICATES
30 Water substitution statements
(1) A relevant entity must lodge a water substitution
5 statement on a date to be determined by the ESC
in respect of each target date.
(2) A water substitution statement must set out--
(a) the name and postal address of the relevant
entity;
10 (b) in the case of a water retailer, the amount of
potable water sold during the relevant year;
(c) in the case of a large water consumer, the
amount of potable water purchased during
the relevant year from all water retailers;
15 (d) the value, in kilolitres of potable water, of
certificates being surrendered for the relevant
period under this section;
(e) any carried forward surplus for the relevant
period;
20 (f) any other information specified in the ESC
guidelines.
(3) A water substitution statement must--
(a) be made in a form and manner specified in
the ESC guidelines;
25 (b) be accompanied by any relevant fee fixed
under section 68 in respect of the lodging of
a water substitution statement;
(c) be signed by or on behalf of the relevant
entity making the statement.
30 (4) A water acquisition statement must be
accompanied by details of all certificates being
surrendered under this section.
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Part 5--Statements and Surrender of Certificates
s. 31
(5) A certificate cannot be specified in the water
substitution statement unless the relevant entity is
recorded in the register of water substitution
certificates as the owner of the certificate at the
5 time that the statement is lodged.
(6) A water substitution statement must also be
audited by an independent third party engaged by
the relevant entity before it is lodged under this
section.
10 31 Restrictions on certificates that can be surrendered
A certificate cannot be surrendered under
section 30 unless--
(a) the certificate is valid; and
(b) the relevant entity is recorded in the register
15 of water substitution certificates as the owner
of the certificate at the time that the
statement is lodged.
32 Fees for surrender of certificates
(1) The ESC must, by notice in writing given to the
20 relevant entity, advise the relevant entity--
(a) of the number of certificates specified under
section 30(4) that can be surrendered; and
(b) of any relevant fee fixed under section 68
that is payable by the relevant entity in
25 respect of the surrender of those certificates.
(2) The relevant entity must pay the fee within the
period of 20 business days beginning on the day
the relevant entity receives the notice under
subsection (1).
30 (3) If the fee is unpaid at the end of that period, the
fee is a debt due to the Crown and is recoverable
by the ESC in any court of competent jurisdiction.
__________________
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Part 6--Enforcement
s. 33
PART 6--ENFORCEMENT
33 Shortfall statement
(1) If the ESC considers that a relevant entity is in
breach of an obligation under section 25, the ESC
5 may issue a shortfall statement to the relevant
entity.
(2) The shortfall statement must set out--
(a) the name and postal address of the relevant
entity;
10 (b) the relevant entity's water substitution
certificate shortfall for the relevant period;
(c) the water substitution shortfall penalty that
the relevant entity is liable to pay under
section 26;
15 (d) the manner in which that penalty is to be
paid;
(e) the time within which that penalty is to be
paid;
(f) any other information which may be required
20 by the ESC.
(3) The shortfall statement must include a statement
advising the relevant entity that if the water
substitution shortfall penalty is not paid in
accordance with the shortfall notice, the ESC may
25 apply to a court for an order requiring the penalty
to be paid.
34 Application for declaration and order for payment
of shortfall penalty
(1) If an water substitution shortfall penalty is not
30 paid in accordance with a shortfall notice, the ESC
may apply to a court for--
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Part 6--Enforcement
s. 35
(a) a declaration that the relevant entity has
contravened section 25; and
(b) an order requiring the relevant entity to pay
the water substitution shortfall penalty.
5 (2) If the court is satisfied that the relevant entity has
contravened section 25, the court may--
(a) make the declaration sought; and
(b) order the relevant entity to pay to the ESC
for payment into the Consolidated Fund the
10 amount of the water substitution shortfall
penalty that the relevant entity is liable to
pay under section 26.
(3) An order made under this section is taken, for the
purposes of enforcement, to be an order made by
15 the court in a civil proceeding.
35 ESC may require surrender of certificates if
certificates improperly created
(1) The ESC may by order in writing require a person
to surrender to the ESC, within a period specified
20 in the order, the number of certificates specified in
the order.
(2) A person must comply with an order under this
section.
Penalty: 600 penalty units and an additional
25 1 penalty unit for each certificate that
the person fails to surrender in
accordance with the order.
(3) An order can only be made against a person under
this section if the person is found guilty of an
30 offence against section 18(1), 18(3), 18(4) or
18(5).
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Part 6--Enforcement
s. 35
(4) If an order is made against a person found guilty
of an offence under section 18(1), 18(3), 18(4) or
18(5), the ESC must require the person to
surrender the number of certificates that is
5 equivalent to the number of certificates that were
created by the person in contravention of section
18(1), 18(3), 18(4) or 18(5) and registered under
this Act.
(5) A certificate surrendered under this section is not
10 to be counted toward a person's compliance with
section 25.
(6) To avoid doubt, it is not an excuse for a failure to
comply with an order under this section that the
person who is the subject of the order is not, at the
15 time the order is made, the registered owner of a
sufficient number of certificates to comply with
the order.
__________________
561PM6B.I-16/4/2008 26 BILL LC INTRODUCTION 16/4/2008
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Part 7--Powers of Authorised Officers
s. 36
PART 7--POWERS OF AUTHORISED OFFICERS
Division 1--Appointment of authorised officers
36 Appointment of authorised officers
(1) The ESC may, in writing, appoint any of the
5 following persons as an authorised officer for the
purposes of this Part--
(a) an employee of the ESC;
(b) a person employed under Part 3 of the
Public Administration Act 2004;
10 (c) any other person employed by the State;
(d) any other person who the ESC considers has
appropriate skills, qualifications and
experience.
(2) The ESC must not appoint a person as an
15 authorised officer unless the ESC is satisfied that
the person has appropriate skills, qualifications
and experience.
(3) In exercising powers or performing functions as
an authorised officer, an authorised officer must
20 comply with any directions of the ESC.
37 Identity cards
(1) The ESC must issue an identity card to an
authorised officer.
(2) The identity card must contain a recent
25 photograph and the signature of the authorised
officer.
(3) An authorised officer must carry the identity card
at all times when exercising powers or performing
functions as an authorised officer.
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Part 7--Powers of Authorised Officers
s. 38
(4) An authorised officer must produce his or her
identity card for inspection--
(a) before exercising a power under this Part
other than a requirement made by post, fax,
5 email or other electronic communication;
and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
Penalty: 10 penalty units.
10 Division 2--Powers of authorised officer
38 When may powers be exercised?
(1) An authorised officer may exercise powers under
this Part only to the extent that it is reasonably
necessary to do so for substantiating information
15 provided under this Act or for determining
whether this Act has been complied with.
(2) In exercising powers under this Part, an authorised
officer must--
(a) cause as little inconvenience as possible; and
20 (b) not remain on premises any longer than is
reasonably necessary.
39 Entry to premises
(1) An authorised officer may at any reasonable time
of the day--
25 (a) without force, enter any premises; and
(b) exercise the monitoring powers set out in
section 43.
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Part 7--Powers of Authorised Officers
s. 40
(2) An authorised officer is not authorised to enter
premises under subsection (1) unless--
(a) the occupier of the premises, whether
business or residential, has consented to the
5 entry and the authorised officer has complied
with section 44; or
(b) the entry is made under a monitoring
warrant.
(3) If the authorised officer is on the premises with
10 the consent of the occupier, the authorised officer
must leave the premises if the occupier asks the
authorised officer to do so.
40 Information to be provided to occupier on entry
(1) If the occupier of the premises is present when an
15 authorised officer exercises a power of entry
under this Part, the officer must inform the
occupier of the purpose of the entry.
Note
The authorised officer must also produce his or her identity
20 card for inspection: see section 37(4).
(2) If an authorised officer exercises a power of entry
under this Part without the occupier being present,
the officer must--
(a) on leaving the premises, leave a notice
25 setting out--
(i) the time of entry; and
(ii) the purpose of entry; and
(iii) a description of all things done while
on the premises; and
30 (iv) the time of departure; and
(v) the procedure for contacting the officer
for further details of the entry; and
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Part 7--Powers of Authorised Officers
s. 41
(b) post a copy of that notice to the occupier of
the premises, if the identity and address of
the occupier are known to the officer.
41 Entry with consent
5 (1) If an occupier consents to an entry under
section 39, the authorised officer must before
entering the premises ask the occupier to sign an
acknowledgement stating--
(a) that the occupier has been informed of the
10 purpose of the entry; and
(b) that the occupier has been informed that he
or she may refuse to consent to the entry; and
(c) that the occupier has consented to the entry;
and
15 (d) the date and time that the occupier
consented.
(2) An occupier who signs an acknowledgement must
be given a copy of the signed acknowledgement
before the authorised officer leaves the premises.
20 (3) If, in any proceeding, an acknowledgement is not
produced to the court or tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry.
(4) An entry of an authorised officer by virtue of the
25 consent of a person is not lawful unless the person
voluntarily consented to the entry.
42 Entry with monitoring warrant
(1) An authorised officer executing a monitoring
warrant must, before entering premises under the
30 warrant--
(a) announce that he or she is authorised to enter
the premises; and
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Part 7--Powers of Authorised Officers
s. 43
(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) If a monitoring warrant is being executed and the
occupier of the premises or another person who
5 apparently represents the occupier is present at the
premises, the authorised officer must make
available to that person a copy of the warrant.
(3) The authorised officer must identify himself or
herself to the person referred to in subsection (2).
10 43 Monitoring powers of authorised officers
(1) For the purposes of this Part, the following are the
monitoring powers that an authorised officer may
exercise in relation to premises under section 39--
(a) the power to search the premises for any
15 thing on the premises that may relate to--
(i) the creation or transfer of certificates;
or
(ii) scheme acquisitions;
(b) the power to examine any activity conducted
20 on the premises that may relate to
information provided for the purposes of this
Act;
(c) the power to examine any thing on the
premises that may relate to information
25 provided for the purposes of this Act;
(d) the power to take photographs or make video
or audio recordings or sketches on the
premises of any such activity or thing;
(e) the power to inspect any document on the
30 premises that may relate to information
provided for the purposes of this Act;
(f) the power to take extracts from, or make
copies of, that document;
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Part 7--Powers of Authorised Officers
s. 43
(g) the power to take onto the premises any
equipment and materials as the authorised
officer requires for the purpose of exercising
powers in relation to the premises;
5 (h) the power to secure a thing that--
(i) is found during the exercise of
monitoring powers on the premises;
and
(ii) an authorised officer believes on
10 reasonable grounds affords evidence of
the commission of an offence against
this Act; and
(iii) the authorised officer believes on
reasonable grounds would be lost,
15 destroyed or tampered with before a
warrant can be obtained--
until a warrant is obtained to seize the thing;
(i) the powers in subsections (2) and (3).
(2) For the purposes of this Part, monitoring powers
20 include the power to operate equipment at
premises to see whether--
(a) the equipment; or
(b) a disk, tape or other storage device that--
(i) is at the premises; and
25 (ii) can be used with the equipment or is
associated with it--
contains information that is relevant to
substantiating information provided under this
Act.
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Part 7--Powers of Authorised Officers
s. 44
(3) For the purposes of this Part, monitoring powers
include the following powers in relation to
information described in subsection (2) found in
the exercise of the power under that subsection--
5 (a) the power to operate facilities at the premises
to put the information in documentary form
and copy the documents so produced;
(b) the power to operate facilities at the premises
to transfer the information to a disk, tape or
10 other storage device that--
(i) is brought to the premises for the
exercise of the power; or
(ii) is at the premises and the use of which
for the purpose has been agreed in
15 writing by the occupier of the premises;
(c) the power to remove from the premises a
disk, tape or other storage device to which
the information has been transferred in the
exercise of the power under paragraph (b).
20 44 Authorised officer may ask for information
If the authorised officer was only authorised to
enter premises because the occupier of the
premises consented to the entry, the authorised
officer may ask the occupier to--
25 (a) answer any questions related to the creation
or transfer of certificates, scheme
acquisitions or the provision of information
under this Act that are put by the authorised
officer; and
30 (b) produce any document requested by the
authorised officer that is so related.
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Part 7--Powers of Authorised Officers
s. 45
45 Authorised officer may require information
If the authorised officer was authorised to enter
the premises by a monitoring warrant, the
authorised officer may require any person in or on
5 the premises to--
(a) answer any questions related to the creation
or transfer of certificates, scheme
acquisitions or the provision of information
under this Act that are put by the authorised
10 officer; and
(b) produce any document requested by the
authorised officer that is so related.
46 Failure to produce documents or answer questions
A person must not, without reasonable excuse, fail
15 to answer a question or produce a document
required under section 45.
Penalty: 60 penalty units.
47 Protection against self-incrimination
(1) It is a reasonable excuse for an individual to
20 refuse or fail to answer a question or produce a
document under section 45 if the answering of the
question or the production of the document would
tend to incriminate the person.
(2) Despite subsection (1), it is not a reasonable
25 excuse for an individual to refuse or fail to
produce a document that the person is required to
keep by this Act, if the production of the
document would tend to incriminate the person.
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Part 7--Powers of Authorised Officers
s. 48
Division 3--Occupiers' rights and responsibilities
48 Occupier may be present during execution of
warrant
(1) If a monitoring warrant is being executed and the
5 occupier of the warrant premises, or another
person who apparently represents the occupier, is
present at the premises, the person is entitled to
observe the execution of the warrant.
(2) The right to observe the execution of the warrant
10 ceases if the person impedes that execution.
(3) This section does not prevent the execution of the
warrant in 2 or more areas of the premises at the
same time.
49 Occupier to provide authorised officer with
15 assistance
The occupier of warrant premises, or another
person who apparently represents the occupier,
must provide the authorised officer executing the
warrant and any person assisting that officer with
20 all reasonable facilities and assistance for the
effective exercise of their powers.
Penalty: 60 penalty units, in the case of an
individual;
240 penalty units, in the case of a body
25 corporate.
Division 4--Monitoring warrants
50 Monitoring warrants
(1) An authorised officer may apply to a magistrate
for a warrant under this section in relation to
30 premises.
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Part 7--Powers of Authorised Officers
s. 50
(2) Subject to subsection (3), the magistrate may issue
the warrant if the magistrate is satisfied, by
information on oath, that it is reasonably
necessary that one or more authorised officers
5 should have access to the premises for the
purposes of substantiating information provided
under this Act or determining whether this Act has
been complied with.
(3) The magistrate must not issue the warrant unless
10 the authorised officer or some other person has
given the magistrate, either orally or by affidavit,
any further information as the magistrate requires
concerning the grounds on which the issue of the
warrant is sought.
15 (4) The warrant must--
(a) authorise one or more authorised officers
(whether or not named in the warrant), with
any assistance and any force as is necessary
and reasonable--
20 (i) to enter the premises; and
(ii) to exercise the powers set out in
section 43 in relation to the premises;
and
(b) state whether the entry is authorised to be
25 made at any time of the day or during
specified hours of the day; and
(c) specify the day (not more than 6 months
after the issue of the warrant) on which the
warrant ceases to have effect; and
30 (d) state the purpose for which the warrant is
issued.
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Part 7--Powers of Authorised Officers
s. 50
(5) A warrant issued under this section must be issued
in accordance with the Magistrates' Court Act
1989 as if it were a search warrant issued under
that Act and must be in a form set out in the
5 regulations under that Act.
(6) Section 78(1)(b)(iii) of the Magistrates' Court
Act 1989 does not apply to a warrant issued under
this section.
(7) Subject to any provisions to the contrary in this
10 Part, the rules to be observed with respect to
search warrants mentioned in the Magistrates'
Court Act 1989 extend and apply to warrants
under this section.
__________________
561PM6B.I-16/4/2008 37 BILL LC INTRODUCTION 16/4/2008
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Part 8--General
s. 51
PART 8--GENERAL
Division 1--Review of decisions
51 Review of decisions
(1) An affected person in relation to a reviewable
5 decision may request that the ESC reconsider the
decision.
(2) The following Table sets out the reviewable
decisions and, for each decision, sets out the
provision under which it is made and the affected
10 person in relation to that reviewable decision.
Table of reviewable decisions
made the affected
Item For a decision... under... person is...
1 to refuse an section 9 the applicant
application for
accreditation
2 to suspend a section 12 the accredited
person's person
accreditation
3 not to register a section 20 the person who
certificate created the
certificate
(3) The request must be--
(a) in writing setting out the reasons for the
request;
(b) accompanied by any relevant fee fixed under
15 section 68;
(c) given to the ESC within 30 business days
after the making of the decision.
(4) The ESC must reconsider the decision and
confirm, vary or set aside the decision.
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Part 8--General
s. 52
(5) Only one request can be made in respect of each
reviewable decision.
Division 2--Registers
52 Registers to be maintained
5 (1) The ESC must maintain--
(a) the register of accredited persons;
(b) the register of water substitution certificates.
(2) A register must be maintained by electronic
means.
10 (3) A register must be made available for inspection
on the ESC's Internet site.
(4) Any addition to a register must be made available
on the ESC's Internet site within 20 business days
after the ESC registers the accreditation of the
15 person or the creation of the certificate.
53 Register of accredited persons
(1) The register of accredited persons must contain--
(a) the name of each accredited person;
(b) the registration number for each accredited
20 person;
(c) any other information specified in the ESC
guidelines for the purposes of facilitating the
transfer of certificates in the VWST scheme.
(2) The register must also contain the following
25 information about any person whose accreditation
is suspended--
(a) the name of the person;
(b) the person's registration number;
(c) the period for which registration is
30 suspended;
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Part 8--General
s. 54
(d) any other information specified in the ESC
guidelines for the purposes of this
subsection.
54 Register of water substitution certificates
5 The register of water substitution certificates must
contain--
(a) the unique identification code of each valid
certificate;
(b) the year in which the certificate was created;
10 (c) the name of the accredited person who
created the certificate;
(d) the name of the current registered owner, and
each previous registered owner, of each
certificate;
15 (e) any other information specified in the ESC
guidelines for the purposes of this section.
Division 3--Information provisions
55 ESC may obtain information and documents
(1) This section applies to a person if the ESC has
20 reason to believe that the person has information
or a document that is relevant to the operation of
this Act.
(2) The ESC may, by written notice given to the
person, require the person--
25 (a) to give to the ESC, within the period (not
being less than 10 business days) and in the
manner and form specified in the notice, that
information; or
(b) to produce to the ESC, within the period and
30 in the manner specified in the notice, that
document; or
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Part 8--General
s. 56
(c) if the person is an individual, to appear
before the ESC at a time and place specified
in the notice to give any information, either
orally or in writing, and produce that
5 document; or
(d) if the person is a body corporate, to cause a
competent officer of the body corporate to
appear before the ESC at a time and place
specified in the notice to give that
10 information, either orally or in writing, and
produce that document.
(3) A notice under subsection (2) must set out the
effect of sections 56 and 57.
56 Failure to comply with notice
15 A person must not, without reasonable excuse, fail
to comply with a notice given to the person under
section 55.
Penalty: 60 penalty units, in the case of an
individual;
20 240 penalty units, in the case of a body
corporate.
57 Protection against self-incrimination
It is a reasonable excuse for an individual to
refuse or fail to give information or evidence or
25 produce a document under section 55 if the giving
of the information or evidence or the production
of the document would tend to incriminate the
person.
58 Copies of documents
30 The ESC may inspect a document produced under
this Division and may make and retain copies of,
or take and retain extracts from, such a document.
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Part 8--General
s. 59
59 ESC may retain documents
(1) The ESC may take, and retain for as long as
necessary, possession of a document produced
under this Division.
5 (2) The person otherwise entitled to possession of the
document is entitled to be supplied, as soon as
practicable, with a copy certified by the ESC to be
a true copy.
(3) The certified copy must be received in all courts
10 and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the ESC must, at
the times and places that the ESC considers
appropriate, permit the person otherwise entitled
to possession of the document, or a person
15 authorised by that person, to inspect and make
copies of, or take extracts from, the document.
60 Disclosure of information an offence
(1) A person must not disclose any confidential or
commercially-sensitive information obtained
20 during the exercise of a power or the performance
of a function under, or in connection with, this
Act.
Penalty: 60 penalty units.
(2) A person must not use any information referred to
25 in subsection (1) to obtain directly or indirectly
any pecuniary or other advantage for himself or
herself or any other person.
Penalty: 120 penalty units.
(3) However, the person may disclose or use
30 information referred to in subsection (1) if--
(a) the disclosure or use is made in the exercise
of a power or the performance of a function
under, or in connection with, this Act; or
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Part 8--General
s. 61
(b) the person has the consent of the person who
supplied the information; or
(c) the disclosure or use is made in legal
proceedings at the direction of a court; or
5 (d) the information is in the public domain at the
time it is disclosed or used.
(4) To avoid doubt, subsection (3) is not intended to
interfere with any rights another person may have
with regard to the disclosure or use of the
10 information.
61 Information may be disclosed
This Division does not prevent the ESC, or a
person authorised by the ESC, from divulging or
communicating information to--
15 (a) the Minister; or
(b) Sustainability Victoria established under the
Sustainability Victoria Act 2005.
62 ESC must publish certain information
(1) The ESC must publish in respect of a relevant
20 period--
(a) a list of each relevant entity that has an water
substitution certificate shortfall;
(b) the amount of each relevant entity's water
substitution certificate shortfall;
25 (c) the total of the water substitution certificate
shortfalls;
(d) the number of certificates created;
(e) the number of certificates surrendered.
(2) Nothing in this Division prevents the publication
30 of the information referred to in subsection (1).
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s. 63
Division 4--General offences
63 False or misleading information
A person must not--
(a) give information to the ESC or any person
5 exercising powers under or in connection
with this Act that the first-mentioned person
knows to be false or misleading in a material
particular; or
(b) produce a document to the ESC or any
10 person exercising powers under or in
connection with this Act that the first-
mentioned person knows to be false or
misleading in a material particular without
indicating the respect in which it is false or
15 misleading and, if practicable, providing
correct information.
Penalty: 60 penalty units, in the case of an
individual;
240 penalty units, in the case of a body
20 corporate.
64 Failure to provide documents
If a person is required under this Act to provide a
document (including a statement or return) to the
ESC within a specified time or by a specified date,
25 the person, must not, without reasonable excuse,
fail to provide the document by the specified time
or the specified date.
Penalty: 60 penalty units, in the case of an
individual;
30 240 penalty units, in the case of a body
corporate.
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Part 8--General
s. 65
65 Offences by bodies corporate
(1) If a body corporate commits an offence against
this Act, any officer of the body corporate who
knowingly authorised or permitted the
5 commission of the offence is also guilty of that
offence and liable to the penalty for it.
(2) A person may be proceeded against and convicted
under a provision in accordance with
subsection (1) whether or not the body corporate
10 has been proceeded against or convicted under
that provision.
(3) If in a proceeding for an offence against this
section it is necessary to establish the intention of
a body corporate, it is sufficient to show that a
15 servant or agent of the body corporate had that
intention.
(4) In subsection (1), officer, in relation to a body
corporate, means--
(a) a director, secretary or executive officer of
20 the body corporate; or
(b) any person in accordance with whose
directions or instructions the directors of the
body corporate are accustomed to act; or
(c) a person concerned in the management of the
25 body corporate.
Division 5--Evidence and records
66 Evidence
(1) A document sealed by the ESC purporting to be a
copy of a document issued or given by the ESC
30 under this Act is evidence that the second-
mentioned document was so issued or given.
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(2) A document sealed by the ESC purporting to be a
copy of, or an extract from, a water substitution
shortfall statement is evidence of the matter set
out in the document to the same extent as the
5 original statement would be if it were produced.
67 Records to be kept by accredited persons and
relevant entities
(1) A person who is an accredited person or a relevant
entity must keep records that record and explain
10 all transactions and other acts engaged in, or
required to be engaged in, by the accredited
person or relevant entity under this Act.
(2) The records kept by an accredited person must
include any documents relevant to ascertaining--
15 (a) details of all certificates created by the
accredited person during the year; and
(b) any other matter specified in the ESC
guidelines.
(3) The records kept by a relevant entity must include
20 any documents relevant to ascertaining--
(a) the amount of potable water sold or
purchased; and
(b) any other matter specified in the ESC
guidelines.
25 (4) The records must be kept--
(a) in writing in the English language or so as to
enable the records to be readily accessible
and convertible into writing in the English
language; and
30 (b) so that the relevant entity's liability under
this Act can be readily ascertained.
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(5) An accredited person or a relevant entity who has
possession of any records kept or obtained under
or for the purposes of this Act must retain them
until the end of 6 years after those records were
5 prepared or obtained, or the completion of the
transactions or acts to which those records relate,
whichever is the later.
(6) Nothing in this section requires an accredited
person or a relevant entity to retain records if--
10 (a) the ESC has notified the accredited person or
relevant entity that the retention of the
records is not required; or
(b) the accredited person or relevant entity is a
company that has gone into liquidation and
15 been finally dissolved.
(7) An accredited person or a relevant entity who
contravenes this section is guilty of an offence and
liable to a penalty not exceeding 60 penalty units,
in the case of an individual, or 240 penalty units,
20 in the case of a body corporate.
Division 6--Fees
68 Fees
(1) The Minister, after consultation with the Minister
administering the Essential Services
25 Commission Act 2001, may fix fees for the
purposes of this Act.
(2) The fees may include--
(a) fees for an application for accreditation;
(b) fees for the creation of a certificate;
30 (c) fees for the transfer of a certificate;
(d) fees for the lodging of a water substitution
statement;
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(e) fees for the surrender of a certificate;
(f) fees for a request for review of a reviewable
decision.
(3) In fixing fees, the Minister may have regard to the
5 total amount of the costs and expenses of the ESC
that are incurred or are likely to be incurred in the
exercise of its powers, or in connection with the
performance of its functions, under this Act.
(4) The power conferred by this section providing for
10 the imposition of fees may be exercised by
providing for all or any of the following matters--
(a) specific fees;
(b) maximum or minimum fees;
(c) maximum and minimum fees;
15 (d) scales of fees according to the value of goods
or services provided for the fees;
(e) the payment of fees either generally or under
specified conditions or in specified
circumstances;
20 (f) the reduction, waiver or refund, in whole or
in part, of the fees.
(5) If under subsection (4)(f) provision is made for a
reduction, waiver or refund, in whole or in part, of
a fee, the reduction, waiver or refund may be
25 expressed to apply either generally or
specifically--
(a) in respect of certain matters or transactions
or classes of matters or transactions; or
(b) in respect of certain documents or classes of
30 documents; or
(c) when an event happens; or
(d) in respect of certain persons or classes of
persons; or
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(e) in respect of any combination of matters,
transactions, documents, events or persons--
and may be expressed to apply subject to specified
conditions or in the discretion of any specified
5 person or body.
(6) A fee that may be fixed under this section is not
limited to an amount that is related to the cost of
providing a service.
(7) The fees must be published--
10 (a) by notice in the Government Gazette; and
(b) on the Internet site of the ESC.
(8) Fees take effect on the day that the notice is
published in the Government Gazette or on a later
date as is specified in the notice.
15 Division 7--ESC guidelines
69 ESC guidelines
(1) The ESC may prepare and issue guidelines for or
with respect to any matter required or permitted
by this Act to be provided for by the ESC
20 guidelines.
(2) Without limiting subsection (1), ESC guidelines
may include matters in relation to--
(a) the accreditation of a person;
(b) the creation, form and transfer of a
25 certificate;
(c) the manner in which a prescribed activity is
to be undertaken;
(d) the form of, and the information to be
included in, a water substitution statement;
30 (e) the auditing by the ESC of the creation of
certificates by an accredited person;
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(f) the auditing of a water substitution statement
by a third party engaged by a relevant entity;
(g) the records to be kept by an accredited
person or a relevant entity;
5 (h) the information to be contained in the
register of accredited persons and the register
of water substitution certificates;
(i) any other matter that the ESC considers is
relevant to the performance of its functions
10 under this Act.
(3) The ESC guidelines must be published in the
Government Gazette and on the Internet site of the
ESC.
(4) ESC guidelines take effect on the day that they are
15 published in the Government Gazette or on a later
date as is specified in the ESC guidelines.
Division 8--Regulations
70 Regulations
(1) The Governor in Council may make regulations
20 for or with respect to--
(a) prescribing an activity as a prescribed
activity in respect of which a certificate may
be created;
(b) prescribing conditions or circumstances
25 under which a certificate cannot be created;
(c) specifying when a prescribed activity is to be
taken to have been undertaken;
(d) prescribing the manner and form in which an
assignment of the right to create a certificate
30 may be made;
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(e) exemptions from any of the requirements
applying in respect of the creation of
certificates;
(f) any matter or thing authorised or required to
5 be prescribed or necessary to be prescribed
for carrying this Act into effect.
(2) Regulations made under this Act--
(a) may be of general or of specially limited
application;
10 (b) may differ according to differences in time,
place or circumstance;
(c) may leave any matter or thing to be from
time to time determined, applied, dispensed
with or regulated by any government
15 department, municipal council or public
authority or any officer thereof;
(d) may confer powers or impose duties in
connection with the regulations on any
government department, municipal council
20 or public authority;
(e) may apply, adopt or incorporate, with or
without modification, the provisions of any
Act or of any regulations made under any
Act as in force at a particular time;
25 (f) may apply, adopt or incorporate with or
without modification, any matter contained
in any document, code, standard, rule,
specification or method formulated, issued,
prescribed or published by any authority or
30 body as formulated, issued, prescribed or
published at the time the regulation is made
or at any time before the regulation is made;
(g) may impose a penalty not exceeding
10 penalty units for any contravention of the
35 regulations.
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(3) The regulations are subject to disallowance by a
House of the Parliament.
Division 9--Review of Act
71 Review of operation of Act
5 (1) The Minister must cause an independent review of
the operation of this Act, including consideration
of--
(a) the extent to which the objects of this Act
have been achieved;
10 (b) the VWST scheme target applying under this
Act;
(c) technological developments in industries
which supply goods or services which reduce
the use of potable water;
15 (d) the level of penalties provided for under this
Act.
(2) The review must be undertaken by 31 December
2012.
(3) A person who undertakes the review must give the
20 Minister a written report of the review.
(4) The Minister must cause a copy of the report of
the review to be tabled in each House of the
Parliament.
(5) In this section independent review means a review
25 by persons who--
(a) in the opinion of the Minister possess
appropriate qualifications to undertake the
review; and
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(b) include one or more persons who are not
employed by the State or a State authority
and have not, since the commencement of
this Act, provided services to the State or a
5 State authority under or in connection with a
contract.
__________________
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Part 9--Amendment of Essential Services Commission Act 2001
s. 72
PART 9--AMENDMENT OF ESSENTIAL SERVICES
COMMISSION ACT 2001
72 Functions
In section 10 of the Essential Services
5 Commission Act 2001--
(a) in paragraph (k) for "2007." substitute
"2007;";
(b) after paragraph (k) insert--
"(l) to perform the functions conferred on
10 the Commission by the Victorian
Water Substitution Target Act
2007.".
73 New section 10E inserted
After section 10D of the Essential Services
15 Commission Act 2001 insert--
"10E Commission's functions in relation to
water substitution
Sections 8, 14, 15, 16, 29 and 30 and Parts 3,
4, 5 and 7 (other than sections 60 and 64) do
20 not apply to the functions of the Commission
referred to in section 10(l).".
74 Repeal of this Part
This Part is repealed on 1 January 2011.
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561PM6B.I-16/4/2008 55 BILL LC INTRODUCTION 16/4/2008
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